Gilmer v. Neuenswander
| Decision Date | 17 June 1947 |
| Docket Number | 46994. |
| Citation | 28 N.W.2d 43,238 Iowa 502 |
| Parties | GILMER v. NEUENSWANDER et al. (BUENNEKE, Intervenor). |
| Court | Iowa Supreme Court |
R Eldon Laird, of Waverly, for appellant.
E B. Shaw, of Oelwein, for appellees, except Opal Gilmer Zanatta.
On February 9, 1932, Alice Gilmer, a widow, was the owner of an 80 acre farm in Fayette County, Iowa.
At that time she had four living children, all adults. When this case was tried in 1945 Alice Gilmer was past 92 years of age and was under voluntary guardianship. A son, E Gilmer, died intestate on January 10, 1945, leaving surviving him his spouse, Zettie M. Gilmer, plaintiff herein, and an adult daughter, Opal Gilmore Zanatta. The widow, Zettie M Gilmer, brought this action in partition, claiming to be the owner of an undivided one-twelfth of the above described real estate, as the widow of E. Gilmer. The petition is in the usual form and asks for a sale of the property on the ground that the same cannot be conveniently divided.
It is the claim of plaintiff that E. Gilmer died seized of an undivided one-fourth of the above real estate, claiming that he derived said interest under a certain warranty deed made by Alice Gilmer to her four living children on February 9, 1932, said deed purporting to convey to each child an equal share in and to said real estate.
This claim of plaintiff was resisted by F. M. Gilmer and Stella Neuenswander, living children of Alice Gilmer, and by Percy Neuenswander, living spouse of Madge Gilmer Neuenswander, deceased, and their daughter, Jeanette Neuenswander. Their answer denies the validity of such deed and alleges that same, if made by Alice Gilmer, was never delivered and was of no force and effect. L. H. Buenneke, as guardian of the person and property of Alice Gilmer, likewise resisted plaintiff's claim, denied the validity of the deed under which plaintiff claims as widow of E. Gilmer and further claimed said real estate as the property of his ward.
The trial court denied the claim of plaintiff and held that the claimed deed, not having been delivered during the lifetime of the grantee, was of no validity and quieted title therein in Alice Gilmer. This appeal followed.
There are some disputes in the evidence. The deed involved purported to bear the signature of Alice Gilmer, was dated February 9, 1932 and was acknowledged on the same date by Albert B. Blunt, a notary, who was deceased at the time of the trial. Alice Gilmer did not testify. Appellant claims that said grantor was in court at the time of the trial. The record does not so show. The surviving children of Alice Gilmer, although grantees in the deed, testified that they never knew of it until the action was brought. They claim nothing thereunder. Neither do the spouse and heirs at law of the deceased daughter, Madge. The deed was thirteen years old when E. Gilmer died and so far as the record shows he never mentioned it to either his brother or sisters. The record does not show anything bearing directly upon the making of the deed or the circumstances under which it was made. There was in the record evidence that the signature on the deed was that of Alice Gilmer. In this decision we will assume that she signed the deed.
Following the making of the deed and up to the time of the death of E. Gilmer, the grantor exercised control over the property described therein and used the revenues therefrom for her support. The record shows that following the date of the deed she spoke of such property and of her possible need thereof and also stated that she had made out a paper conveying same to her four children when she was through with it; that by reason of such paper it would not have to go through court. There is also in the record testimony that shortly before his death E. Gilmer made statements inconsistent with a claim of ownership under the deed and which had the effect of corroborating the statements of Alice Gilmer above described. The principal dispute in the record is as to where the deed was found after E. Gilmer died. Appellant claims that it was in the possession of E. Gilmer in an iron safe in his home where it was found shortly following his death by his daughter, Opal Gilmer Zanatta. Opal testified positively to that effect and claimed that a short time later she took the deed and some other papers to a lock box in a bank at Maynard, Iowa, which contained papers belonging to her father; also others belonging to Alice Gilmer. She testified that the deed remained in such lock box until April, 1945, when she took it to her attorney who recorded it on November 19, 1945. For a number of years the lock box had stood in the name of Alice Gilmer or E. Gilmer. Both had access to it and both kept various papers therein.
The trial court in a finding of fact disregarded the testimony of Opal that the deed was in her father's safe in his home at his death, and concluded that the deed when found was in the lock box in the Maynard bank and that the grantor had not delivered same to any of the grantees and that the same was still under the control of the grantor. We hold that under the record the decision of the trial court was right.
I. Various propositions have been argued by the parties. Appellant argues that the controlling question in the case is that of the delivery of the deed. She also argues as to the competency of various witnesses offered by the appellees, urging that such witnesses were incompetent under what is known as the 'Dead Man's Statute', Sec. 622.4, 1946 Code of Iowa. We will first take up the question which appellant argues is controlling--the delivery of the deed.
She argues that the deed being in the possession of a grantee, E. Gilmer, at his death, a presumption arises that the same had been delivered and was therefore effective. Where an instrument, such as the one here involved, is in the possession of the grantee such rule applies and the burden rests upon the party attacking the same to rebut such presumption. However, where such possession is not shown the presumption does not obtain. In any event, a presumption must ever conform to the commonly accepted experiences of mankind and the inferences which reasonable men would draw from such experiences. 20 Am.Jur. pp. 161, 162, Sec. 158; Dyson v. Dyson, Iowa, 25 N.W.2d 259.
The Dyson case is a very recent decision of this court. There this court, speaking through Hays, J., made a careful analysis of the pronouncements of this court dealing with the question of delivery of written instruments. Without setting out the cases therein cited, we call attention to them as setting forth the rules to be followed where there is dispute as to whether or not an instrument stands or falls by reason of the question of delivery.
Appellant argues throughout that as the testimony of Opal Gilmer Zanatta that she found the deed in a safe belonging to her father in his home stands uncontradicted, it must stand as a verity and that such apparent delivery is presumed, and in such event appellees have failed to show nondelivery by the evidence. This court recently held in the case of Benson v. Custer, Iowa, 17 N.W.2d 889, Orr v. Graybill, Iowa, 23 N.W.2d 414, that the court is not required to accept as a verity uncontradicted testimony but that the same should be scrutinized closely as to its credibility, taking into consideration all other circumstances throwing light thereon. Opal was an interested witness. Her interest, if any, in the land sought to be partitioned is double that of her mother, the appellant. Her testimony of the finding of the deed, where and under what circumstances, where it was placed when she removed it some three months later; the fact that she did not consult the other grantees in taking it away for record; all are matters from which reasonable minds might draw inferences contrary to her unchallenged declaration as to where she first saw the deed. The trial court, following a careful analysis of the record, failed to accord to Opal's testimony the weight to which appellant claims it is entitled. We agree with the trial court in such respect.
II. Even should we assume that the grantor delivered the deed to E Gilmer, one of the four grantees, does it naturally follow that she did so with the intention that it was a full and final delivery? We have held many times that the delivery of a written instrument to give it legal effect necessarily depends upon the intention of the grantor. We so held in Dyson v. Dyson, supra, Iowa Law Review Vol. 30, page 108; Miller v. Armstrong, 234 Iowa 1166, 15 N.W.2d 265, 266. In the Miller case we said: ...
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